TMI Blog2018 (10) TMI 1430X X X X Extracts X X X X X X X X Extracts X X X X ..... , AM And Shri S. S. Viswanethra Ravi, JM For the Appellant : Shri Miraj D.Shah, AR For the Respondent : Shri M.K.Biswas, Addl. CIT ORDER PER J.SUDHAKAR REDDY, AM: This is an appeal filed by the assessee directed against the order of the Commissioner of Income Tax-(A)-13, dated 18.09.2017 passed u/s 250 of the Income Tax Act, 1961 (the Act ) relating to A.Y. 2012-13. 2. The assessee is a company. The issue that arises for our adjudication is whether an addition can be made of an amount which is received by sale of an asset i.e. shares held by the assessee as investments from earlier years. The assessee during the year has sold equity shares to M/s Grade Suppliers Pvt. Ltd, M/s Kritimaan Tie-up Pvt. Ltd and Jhankar Dealers Pvt. Ltd. The AO issued summons u/s 131 of the Act to all the purchasers of the shares. They filed details in response. He has come to a conclusion that the credits are not explained and made an addition u/s 68 of the Act as none of the directors appeared before him. Aggrieved the assessee carried the matter in appeal. The ld. First Appellate Authority upheld the order of the AO. Further aggrieved the assesee is in appeal before us. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be made u/s 68 of the Act. We are of the opinion that no addition can be made u/s 68 of the Act on the facts and circumstances of this case. The assessee has discharged the burden of proof that is on it. There is no contrary evidence brought on records by the AO to disprove the claim of the assessee. Addition has been made on suspicion and surmises. 5. The Delhi G Bench of the Tribunal in ITA NO.2264/Del/2013 in the case of ITO vs M/s Srishti Fincap Pvt. Ltd. Order dated 07.10.2015 held as follows : 9. From the facts and circumstances of the case, submissions made by the parties and case law cited in this case, we are of the considered view that no ground is made out to interfere into the order passed by Ld. CIT(A) for the following reasons: i) that in the instant case, A.O. has merely acted upon information supplied by DIT (Inv.) and has not preferred to analyze the previous returns filed by the assessee to make out if he has already disclosed the purchase of shares in question. ii) that from the perusal of copies of assessment proceedings initiated u/s 147 read with section 143(3) of the Act, pertaining to Assessment Year 2003-04 lying at pages 45-46 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nished by the assessee. The assessee has also produced best possible evidence to support its claim. Consequently the addition made by the Assessing Officer cannot be sustained. ix) that the issue in controversy is squarely covered by the judgements: Vishal Holding and Capital Pvt. Ltd. and Jatin Investment Pvt. Ltd. (supra) as the assessee in the instant case has purchased the shares to the tune of ₹ 25,10,000/- in the Assessment Year 2003-04 and then credited the receipt on account of sale of shares to the tune of ₹ 25,10,000/- to its P L account, which has already been declared and considered as its income by the appellant / assessee. So Ld. CIT(A) has legally and rightly deleted the addition of ₹ 25,10,000/- vide impugned order. 11. As a sequel to the discussion made in the preceding paragraphs and in view of the ratio of judgement in the case of Vishal Holding and Capital Pvt. Ltd. (supra), we are of the opinion that when the assessee has proved to have purchased the shares of ₹ 25,10,000/- in the preceding assessment year duly shown in the balance sheet and then sold the same and shown an amount of ₹ 25,10,000/- as sale proceeds of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60 of 2009, dt. 12.12.2012 2. CIT vs. Sudeep Goenka, ITA No. 468 of 2009, dt. 3.01.2013. 3. CIT vs. Anirudh Narain Aggarwal, ITA No . 195 of 2010, dt. 16.01.2013. It was pointed out that the same issue has been decided by the I.T.A.T. in assessee's own case in I.T.A.T. No. 1584/Del./2009 for the A.Y. 2002-03 vide order dated 13.11.2009, in assessee's favour (copy of the order was furnished which is placed on record) 12. We have considered the submissions of both the parties and gone through the material available on the record. In the present case, it is noticed that the assessee purchased the shares in earlier years which were shown as investment in the books of accounts and reflected in the Asset Side of the Balance Sheet , out of those investments (copy which is placed at page no. 23 and 24 of the assessee's paper book), the assessee sold certain investments and accounted for the profit / loss and offered the same for taxation. In the present case, the amount in question was neither a loan or the deposit , it was also not on account of share application money, the said amount was on account of sale of investment therefore the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. The Hon ble Delhi High Court in the case of Principal C.I.T. vs Jatin Investment Pvt. Ltd. [2017 ] TMI 342 (Delhi) held as follows :- 4. The ITAT agreed with the conclusions of the CIT (A) upon its independent examination of the record. It also discounted the Revenue's submissions that the investment shown in the book of accounts and reflected as assets in the side of the balance sheet, should have been properly treated and that in the absence of such treatment .Section 68 applies. The ITAT rejected this contention and held - based upon the principles enunciated in CIT v. Vishaf Holding Capital Pvt. Ltd. (order of this Court dated 9.8.2010) that the invocation of Section'68 in the circumstances is unwarranted. 5. Learned counsel for the Revenue reiterated the grounds cited in some of the contentions made before the ITAT. Learned counsel especially emphasized on the submission that the incorrect reflection of the receipts in the balance sheet belied the true nature of the receipts as a justification for the application of Section 68 . 6. The ITAT in our opinion quite correctly appreciated the law and its application by the first appellate autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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